In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1873

ROADWAY EXPRESS, INC.,

Petitioner,

v.

UNITED STATES DEPARTMENT OF LABOR,

ADMINISTRATIVE REVIEW BOARD,

Respondent,

and

PETER CEFALU,

Intervenor.

____________

On Petition for Review of a Final Order

of the Administrative Review Board.

ARB Case Nos. 04-103 and 04-161.

____________

ARGUED DECEMBER 6, 2006—DECIDED JULY 25, 2007

____________

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Peter Cefalu was terminated

from his position as a truck driver with Roadway Express,

Inc. (“Roadway”) on February 21, 2002. That happened to

be the same day on which he provided testimony in

support of a fellow employee’s grievance hearing against

Roadway. On August 19, 2002, Cefalu filed a complaint

with the Occupational Safety and Health Administration

(“OSHA”), an agency within the Department of Labor
2 No. 06-1873

(“DOL”), alleging that he had been fired in retaliation for

his support of his co-worker in the grievance hearing and

that this activity was protected under the Surface Transportation Assistance Act of 1982 (“STAA”), 49 U.S.C.

§ 31105.

Roadway responded that Cefalu’s termination had

nothing to do with his testimony. Instead, the company

asserted, he was fired because he had lied on his employment application when he failed to report previous

serious truck driving accidents and the fact that he had

lost his earlier job after those accidents. For reasons that

are unclear, however, Roadway refused to comply with

discovery orders in the DOL proceedings; one of the

orders it flouted asked who first alerted the company to

Cefalu’s driving history. As a sanction, the DOL Administrative Law Judge (“ALJ”) ruled that Roadway could not

present evidence that it had learned from its undisclosed

informant. This sanction prevented Roadway from defending the termination of Cefalu by using his driving record.

The Administrative Review Board approved the ALJ’s

ultimate decision in Cefalu’s favor. In its petition to this

court, Roadway contests the discovery sanction as well

as the substantive ruling in Cefalu’s favor.

I

In 1982, Congress enacted the STAA to combat the

“increasing number of deaths, injuries and property

damage” resulting from commercial trucking accidents.

Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987)

(quoting 128 Cong. Rec. 32509, 32510 (1982)). One measure the statute adopted to further its goals was a provision forbidding an employer from discharging or discriminating against an employee for taking actions such as

filing a complaint or testifying in a safety-related proceed-
No. 06-1873 3

ing that point out an employer’s safety violations. 49

U.S.C. § 31105(a)(1).

Cefalu worked as a commercial truck driver for Roadway

from November 22, 1999, to February 21, 2002. He belonged to Teamsters’ Local 200, as did Jonathan Gomaz,

another Roadway driver. After Roadway discharged Gomaz

for allegedly falsifying his driving log, Gomaz filed a

grievance. In the ensuing proceedings, Cefalu provided a

written, notarized statement asserting that a Roadway

supervisor had asked Cefalu to falsify his driving log. The

grievance panel reinstated Gomaz.

Thomas Forrest, Roadway’s manager for labor relations, attended the grievance hearing. After it was over, he

telephoned Robert Schauer, the assistant terminal manager at Roadway’s Milwaukee facility, to inform him of the

reinstatement. Forrest claimed that he did not tell Schauer

about Cefalu’s statements. Later that same afternoon,

February 21, however, Schauer participated in a conference call with Phillip Stanoch, Roadway’s vice-president

for labor relations, and Mike Jones, Roadway’s relay

manager. After the call, Jones called in a union representative, telephoned Cefalu, and then fired Cefalu for

falsifying his employment application. Cefalu filed a

complaint with OSHA on August 19, 2002, alleging that

Roadway had violated the STAA when it discharged him.

After OSHA dismissed his complaint for lack of merit,

Cefalu appealed and his case was assigned to an ALJ.

At that point, Cefalu served interrogatories on Roadway,

including one asking the company to identify all persons

who provided information relevant to his discharge.

Roadway refused to furnish the name of the confidential

source who first informed the company about Cefalu’s

driving record. Roadway claimed that revealing its

source would put the informant at risk of retaliation

and hurt its business operations. The ALJ rejected this
4 No. 06-1873

argument and granted Cefalu’s motion to compel the

information. The judge noted that Roadway had not

invoked any recognized privilege for withholding the

information, and that it had even acknowledged that its

stance warranted a sanction. Cefalu requested an entry of

default judgment, but the ALJ instead chose the lesser

sanction of precluding Roadway from presenting any

evidence that arose from the confidential source.

As a practical matter, this sanction spelled the end to

Roadway’s defense, since Roadway had no other independent evidence indicating that the termination was not

retaliatory. The ALJ therefore concluded that Cefalu had

proved by a preponderance of the evidence that he was

fired for engaging in the protected activity of providing

testimony at the Gomaz grievance hearing. The Board

affirmed the ALJ’s decision.

II

Roadway has petitioned for review of the Board’s order

requiring reinstatement (an automatic remedy for an

STAA violation), back pay, and attorney’s fees and expenses for Cefalu. It argues first that the ALJ deprived it

of its “fundamental right to due process” by imposing the

evidentiary sanction; on the merits, it argues that Cefalu’s

discharge did not violate the STAA; and finally, it urges

that it would violate public policy to reinstate Cefalu.

We find it preferable first to take up Roadway’s argument that Cefalu failed to make out a prima facie case

that the company’s discharge of Cefalu violated the STAA.

If this were correct, we would not need to evaluate the

discovery sanction imposed on Roadway because its

effect did not come into play until the point at which

Roadway was obliged to offer a legitimate reason for the

adverse action against the employee.
No. 06-1873 5

A

This circuit allows a wide variety of retaliation claims to

be approached for purposes of summary judgment motions either through a direct or an indirect approach.

Rogers v. City of Chicago, 320 F.3d 748, 753-54 (7th Cir.

2003). The parties seem confused about which was used

here, but the dispute is beside the point. In this case, as

in any in which the decisionmaker ruled on the ultimate

question, the taxonomy loses its importance. We review

the method that the ALJ seems to have used only to

highlight the questions he was asking. It was similar to

the familiar one launched by McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). The employee has the

initial burden of showing “1) that he engaged in protected

activity under the STAA; 2) that he was the subject of

adverse employment action; and 3) that there was a causal

link between his protected activity and the adverse action

of his employer.” Moon v. Transport Drivers, Inc., 836 F.2d

226, 229 (6th Cir. 1987). Once he has done so, the burden

shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee’s rejection. Then the

employee has an opportunity to show that the employer’s

stated reason for the adverse action was pretextual and

that intentional discrimination was at work. Buie v.

Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004). In

retaliation cases, this court has observed that “[t]he fact

that the defendant may be able to produce evidence that

the plaintiff was fired for a lawful reason just creates an

issue of fact: what was the true cause of the discharge.”

Stone v. City of Indianapolis, 281 F.3d 640, 643 (7th Cir.

2002).

But, as we said earlier, the burden-shifting tests are

normally used to decide whether summary judgment is

proper. Here, the ALJ reached a final decision on the

merits of Cefalu’s claim. We thus look at the various

steps along the way to the judge’s result only for whatever light they throw on the ultimate conclusion.
6 No. 06-1873

B

Roadway contends that the Gomaz hearing was not an

activity protected under the STAA because it was not a

“proceeding relating to a violation of a commercial motor

vehicle safety rule, regulation, standard, or order.” 49

U.S.C. § 2305(a) (STAA). Roadway is therefore arguing

that the alleged falsification of driving logs, the misconduct Gomaz had allegedly committed, is unrelated to

vehicle safety. DOL sees matters differently: it takes the

position that “driving logs serve important safety purposes of ascertaining whether a driver has reached his

maximum hours.”

Even apart from any deference we might owe to the

Department’s views, DOL has the better of this argument.

At least two of our fellow circuits have characterized

driving logs as a measure of safety compliance, and

driving-log rules as safety regulations. See United States

v. Anderson, 339 F.3d 720, 723 (8th Cir. 2003) (labeling “an

incomplete driving log” as a “violation of . . . [a] safety

regulation[]”); Darrell Andrews Trucking, Inc. v. Fed.

Motor Carrier Safety Admin., 296 F.3d 1120, 1123 (D.C.

Cir. 2002) (identifying the underlying purpose of mandatory driving logs as “ensur[ing] that truck drivers are

awake and alert on the road”). The same message is

conveyed by the applicable transportation regulations,

which describe driving logs as

the primary regulatory tool used by the Federal

government, State governments, drivers, and commercial motor carriers to determine a driver’s compliance

with the maximum hours of service limitations . . . .

[They are] used to place drivers out of service when

they are in violation of the maximum limitations at

the time of inspection . . . [and to] determin[e] a motor

carrier’s overall safety compliance status in controlling

excess on duty hours, a major contributory factor in

fatigue induced accidents.
No. 06-1873 7

47 Fed. Reg. 53383-01. We see no reason to disagree with

the views of our sister circuits and the DOL; indeed, we

would come to the same conclusion writing on a clean

slate. If, as Cefalu testified, a Roadway manager ordered

Gomaz to falsify his driving logs, that would have been

a violation of federal vehicle safety regulations. Cefalu’s

testimony is therefore protected under the STAA.

C

Roadway next claims that it could not have retaliated

against Cefalu because its decisionmaker did not know

about Cefalu’s protected activity. The ALJ, however, found

otherwise after he assessed the credibility of the witnesses. Although Forrest testified that he did not tell

Schauer about Cefalu’s testimony at Gomaz’s hearing,

when he telephoned Schauer to report the outcome of the

hearing, the ALJ did not believe him. Instead, the Board

credited the ALJ’s findings that Forrest told Schauer, and

then that someone informed Stanoch, the vice president

for labor relations. The Board expressly found that

“Stanoch knew about Cefalu’s protected activity when

he discharged him.”

The Board was “obligated by regulation to treat the

ALJ’s findings as conclusive if supported by substantial

evidence.” See Brink’s, Inc. v. Herman, 148 F.3d 175, 178

(2d Cir. 1998) (citing 29 C.F.R. § 1978.109(c)(3)). Reviewing courts must also sustain an ALJ’s findings of fact

“ ‘unless they are ‘unsupported by substantial evidence’ in

the record as a whole.’ ” Brink’s, 148 F.3d at 178 (quoting

5 U.S.C. § 706(2)(A)). “Substantial evidence means

such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Brink’s, 148 F.3d

at 179 (internal quotation marks omitted).

We find substantial evidence to support the ALJ’s

credibility determination. Roadway’s contention that
8 No. 06-1873

Stanoch lacked knowledge of Cefalu’s testimony depended

entirely on the believability of Forrest’s testimony. Once

the ALJ and the Board rejected Forrest’s version of the

exchange, they were free to draw the inference that

Stanoch knew about Cefalu’s role at the Gomaz hearing.

This also permitted the ALJ to infer that there was a

basis in the record “to conclude that Forrest [may] have

deviated from his usual practice of not reporting to

Schauer the details of grievance hearings” and that

Schauer passed along the information in his conversation

with supervisor Stanoch not more than a couple of hours

later. Given the seriousness of Cefalu’s allegations, the

ALJ was also entitled to conclude that it was more likely

than not that his testimony would be reported up the

chain of command. Combined with the timing of Cefalu’s

STAA activity and Roadway’s adverse action in this case,

there is substantial evidence to support the administrative

result.

III

This takes us to Roadway’s challenge to the discovery

sanction. Roadway argues both that the sanction had the

effect of depriving it of its fundamental right to due

process, and that it “was wholly disproportionate to

Roadway’s isolated and non-prejudicial discovery violation.” We consider these points in turn.

A

Roadway spends some time arguing that it was entitled

to due process in this hearing, because it had a protected

interest in its ability to discharge an employee for cause,

citing Brock, 481 U.S. at 261. But no one contests this

proposition. The question is rather whether the procedures

the ALJ followed were consistent with the statute and
No. 06-1873 9

regulations, and if so, whether anything the judge did

violated the Fifth Amendment’s Due Process Clause.

Roadway also argues that the result of the sanction was

that the ALJ rendered a decision “on an issue that was not

fully and fairly litigated at an administrative hearing,”

citing Yellow Freight Sys. v. Reich, 8 F.3d 980, 987 (4th

Cir. 1993), which in turn relied on Yellow Freight Sys. v.

Martin, 954 F.2d 353, 358 (6th Cir. 1992). This is but

another route to the same due process claim.

The agency’s rules unambiguously permit the ALJ to

impose, as a discovery sanction, an order excluding

evidence that a non-complying party wishes to introduce in

support of its claim. See 29 C.F.R. § 18.6(d)(2)(iii). This

is undoubtedly why Roadway has turned to the Constitution for relief. But nothing in the Due Process Clause

forbids an adjudicator (either a court or an administrative

body) from imposing reasonable rules to structure the

proceedings before it. The logic of Roadway’s position is

that even something like FED. R. CIV. P. 37(b)(2)(B), which

allows a court to punish noncompliance with an order

requiring discovery by “[a]n order . . . prohibiting [the

disobedient party] from introducing designated matters

in evidence,” is unconstitutional. Such a conclusion

would be flatly inconsistent with the Supreme Court’s

holdings in Insurance Corp. of Ireland, Ltd. v. Compagnie

des Bauxites de Guinee, 456 U.S. 694, 706-07 (1982),

upholding the use of Rule 37(b)(2)(A) to regard the critical

fact of personal jurisdiction as established, and National

Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S.

639, 643 (1976), finding no abuse of discretion in the

imposition of the extreme sanction of dismissal under Rule

37(b)(2)(C) for a discovery violation. If Roadway had

chosen to obey the ALJ’s order and provide the information requested in the interrogatories, it would have been

free to use the information in any way it wanted.
10 No. 06-1873

Roadway knew that its non-compliance with the discovery order could lead to significant sanctions. Yet even after

the ALJ gave Roadway three more days to comply while

refraining from ruling on Cefalu’s motion for default

judgment, Roadway decided not to disclose the identity of

its confidential informant. Again, the ALJ noted that

Roadway “alleged [no] recognized privilege that would

protect the source’s identity from discovery.” To this day,

Roadway has not challenged that assessment. There is

no due process violation on these facts.

B

Roadway next argues that the ALJ chose a disproportionately harsh sanction. We review the agency’s choice of

a sanction for abuse of discretion, so long as the sanction

is “within [the] statutory limits” imposed on the agency.

Chapman v. U.S. Commodity Futures Trading Comm’n,

788 F.2d 408, 411 (7th Cir. 1986). The Department of

Labor has issued regulations that govern an ALJ’s sanctions for a party’s failure to comply with an order of court.

29 C.F.R. § 18.6(d)(2). One of them permits an ALJ to

“[r]ule that the non-complying party may not introduce

into evidence or otherwise rely upon testimony by such

party, officer or agent, or the documents or other evidence,

in support of or in opposition to any claim or defense.” 29

C.F.R. § 18.6(d)(2)(iii). This allowance is prefaced by

language giving the ALJ some flexibility in how he administers the sanctions regime, under which, “for the purpose

of permitting resolution of the relevant issues and disposition of the proceeding without unnecessary delay despite

such failure, [he] may take such action in regard thereto

as is just . . . .” 29 C.F.R. § 18.6(d)(2) (emphasis added).

To determine whether a judge has abused his discretion

by sanctioning a party, we too look at the proportionality

of the sanction to the discovery violation, but only to ask
No. 06-1873 11

whether the judge’s decision was a reasonable one—not to

decide whether we might have done the same in the

judge’s place. See Marrocco v. Gen. Motors Corp., 966 F.2d

220, 223 (7th Cir. 1992).

In the DOL proceedings, Roadway failed to provide a

complete answer to an interrogatory that sought information critical to Cefalu’s case. Recall that Roadway was

defending its discharge of Cefalu on the ground that he

lied on his employment application. Cefalu’s only hope

was to show that any such lies were not the true reason

why Roadway acted as it did. In order to prove pretext,

Cefalu was entitled to know the source of the information

that allegedly led to his discharge. The source’s identity

would likely help Cefalu show when and how Roadway

had learned of the inaccuracies on his job application. If,

for example, Roadway had known of the discrepancy for

months or years, Cefalu would have had significant

circumstantial evidence of pretext.

Roadway’s non-compliance made it impossible for Cefalu

to present his theory of the case and for the ALJ to resolve the claim on the merits. The ALJ’s response was to

level the playing field as well as he could through a

sanction. If Roadway had evidence from other sources, it

could have introduced it. Although we recognize that

the sanction as a practical matter may have had an

enormous impact on Roadway’s case, the ALJ did not

select an impermissibly disproportionate sanction for

Roadway’s noncompliance with his orders. We cannot

conclude that the ALJ abused his discretion.

IV

We next consider Roadway’s challenge to the Board’s

remedial order. The STAA states that if DOL concludes

that an employer terminated an employee in retaliation for
12 No. 06-1873

STAA-protected activity, “the Secretary shall order the

[employer] to . . . reinstate the complainant to the former

position with the same pay and terms and privileges of

employment.” 49 U.S.C. § 31105(b)(3)(A). Although this

requirement is apparently absolute, we recognize that

there must be practical limits to it. If, for example, Cefalu

were now blind, we would not require Roadway to reinstate him as a truck driver. If Roadway no longer existed,

we would not force it to reincorporate for the purposes of

reinstating Cefalu. In short, if the premise behind the

statutory remedy, that the status quo ante can be restored,

fails, then the Board is entitled to adopt a remedy that

is the functional equivalent of the one prescribed by the

statute.

The Supreme Court has noted the problem with a

“reinstatement” remedy—that in some instances it could

obligate an employer to reinstate an incompetent or

unqualified employee. Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274 (1977). There, addressing a

First Amendment claim, the Court wrote that

[t]he constitutional principle at stake is sufficiently

vindicated if such an employee is placed in no worse a

position than if he had not engaged in the conduct. A

borderline or marginal candidate should not have the

employment question resolved against him because of

constitutionally protected conduct. But that same

candidate ought not to be able, by engaging in such

conduct, to prevent his employer from assessing his

performance record and reaching a decision not to

rehire on the basis of that record, simply because the

protected conduct makes the employer more certain

of the correctness of its decision.

Id. at 285-86. In that “mixed motive” case, the Court

concluded that after the complaining party showed that his

protected conduct was a substantial or motivating factor

behind the adverse action, the burden should shift to the
No. 06-1873 13

other party (there, a school district) to show that it

would have reached the same decision even in the absence

of the protected conduct. Id. at 287.

The same general approach applies to a case like

Cefalu’s. He has proven, as the Board found, that his

protected conduct was a substantial or motivating factor

behind his termination. For purposes of the STAA, that

is enough to show that Roadway violated the law. But it

is not necessarily the case that Cefalu is entitled to

reinstatement, if after appropriate proceedings Roadway

can show that it would have terminated him even in the

absence of his protected conduct. On the question of

remedy, Roadway was entitled to show that Cefalu indeed dissembled in his employment application to the

company. Cefalu wrote that he “resigned” from his previous position. In fact, according to the minutes of the Motor

Carrier Labor Advisory Council meeting on September 1,

1998, at which Cefalu unsuccessfully contested his termination, he was laid off because of his “recklessness resulting in a serious accident while on duty . . . [when he] fell

asleep and struck a guardrail.” Cefalu, in turn, should

have the opportunity to show that Roadway does not

terminate everyone with such a record, perhaps if the

person has had a clean record for a certain number of

years in the interim, or other extenuating circumstances

exist.

The ALJ’s evidentiary sanction may have been necessary

to address Roadway’s noncompliance with the discovery

order for the merits phase of the case, because Roadway’s

stonewalling deprived Cefalu of his ability to present his

defense. No such effect, however, was present at the

remedial stage. Roadway’s withholding of the identity of

its informant in no way prevented Cefalu from contesting

Roadway’s claim that reinstatement was an inappropriate

remedy because of public safety. Nothing about how, why,

or when Roadway learned about Cefalu’s misstatements
14 No. 06-1873

is pertinent to Cefalu’s effort to keep his job despite his

conceded earlier problems. If the facts are as Roadway

contends, then public-safety concerns, or even regulatory

rules, may make it impossible for Roadway to reinstate

Cefalu. Roadway therefore should have been permitted

to refer to Cefalu’s earlier driving record during the

remedial stage. The Board abused its discretion in disallowing Roadway’s public-safety argument against the

reinstatement remedy. We therefore remand the case to

the Board for further proceedings on remedy.

V

Last, we consider Cefalu’s motion asking this court to

strike Roadway’s brief and part of Roadway’s Supplemental Appendix. We criticized the use of motions to strike for

this purpose in Redwood v. Dobson, 476 F.3d 462, 470-71

(7th Cir. 2007). What Cefalu probably wanted was either

summary affirmance or dismissal of the petition, either of

which would be a proper sanction in an appropriate case.

That said, we read the statement of facts in Roadway’s

brief with some concern. Much of what Roadway states as

fact, using citations to the record, is based only on the offer

of proof that Roadway’s attorney presented to the ALJ

rather than any actual proof. Particularly troublesome

is Roadway’s statement that “[t]he reasons Cefalu concealed [his driving history from Roadway] . . . was that he

knew divulging it would eliminate any chance of Roadway

hiring him.” Roadway’s record citation for this “fact” is its

counsel’s characterization of Cefalu’s action as such to the

ALJ. This does not satisfy Seventh Circuit Rule 28(c),

which states that “[n]o fact shall be stated in this part of

the brief unless it is supported by a reference to the page

or pages of the record or the appendix where that fact

appears.”
No. 06-1873 15

Whether by deceit or laziness, Roadway’s failure to

comply with Circuit Rule 28 is inexcusable. Although we

decline to impose more than a warning on Roadway and its

counsel at this time, we will not hesitate to go further

if similar violations recur.

VI

In summary, we DENY Roadway’s petition for review to

the extent that it challenges the Board’s decision that it

violated the STAA and the Board’s affirmance of the

sanction that the ALJ imposed during the merits stage. We

GRANT the petition to the extent that it challenges the use

of the sanction in the remedy stage of the proceedings. We

REMAND the case to the Board for reconsideration of the

appropriate remedy for the violation.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-25-07